Anti-bullying laws and company directors

Posted on July 4th, 2017

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We generally do not think of company directors as “workers”. However a recent Fair Work Commission decision says that directors are workers – at least for the purpose of its anti-bullying powers.

The anti-bullying part of the Fair Work Act says that “workers” are eligible to make an anti-bullying application. A “worker” is defined by reference to the Work, Health & Safety Act 2011 which itself lists a number of classes of activity that amount to being a “worker”. A company director is not included in the list; but the general description includes a ‘person carrying out work in any capacity for a person conducting a business or undertaking’. 

In the case of Adamson [2017] FWC 1976 (19 May 2017), the applicant was a board member and the Chairman of the Anangu Pitjantjatjara Yankunytjatjara Inc. He alleged that the general manager and deputy chair of Anangu Pitjantjatjara Yankunytjatjara Inc had engaged in a range of bullying behaviour toward him. He made an application for anti-bullying orders.

One of the defences raised by Anangu Pitjantjatjara Yankunytjatjara Inc, was that Mr Adamson was not a ‘worker’. The Fair Work Act disagreed, noting that the definition should be interpreted broadly given the ‘remedial’ nature of the anti-bullying power.

Mr Adamson ultimately failed in obtaining anti-bullying orders. He was no longer a board member of Anangu Pitjantjatjara Yankunytjatjara Inc by the time of the hearing; and because of that fact, there was no risk of continued bullying behaviour, so no order was made. The decision does however indicate that directors are workers for anti bullying purposes; and that if there are concerns that behaviour by other directors (or indeed by any other member of an organisation) amounts to bullying the Fair Work Act can be asked to intervene.

From time to time, boards engage in vigorous discussions and debates about issues; often over a series of meetings. Directors should be aware that if their conduct amounts to ‘bullying’ other members of their board, they could conceivably be the subject of an application for anti-bullying relief.

Tony Cavanagh Director at Mullane & Lindsay Solicitors, NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigationand employment lawIf you require any assistance in these areas please contact Tony Cavanagh to arrange a consultation or contact our Newcastle or Sydney office. 

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